Proposition 8 — the California ballot initiative banning gay marriage — comes before the high court Tuesday. On Wednesday, the justices are to weigh the Defense of Marriage Act, a 1996 federal law that bars federal recognition of same-sex marriages blessed by states.

Some background: Proposition 8 was California’s 2008 ballot initiative banning gay marriage. It won support from 52% of voters and nullified a decision five months earlier by the state’s Supreme Court allowing the practice. The state court in May 2009 said the ban could stand.

Outside the court this morning, hundreds, and perhaps thousands, of people are packed tightly in front of the U.S. Supreme Court. The crowd is peaceful, holding signs and listening to speakers, although movement is restricted because of the dense crowd occupying a small space. (Photo: AP)

Most signs reflect support for same-sex marriage. One popular banner says “Marriage is a constitutional right” while others say ‘”I do’ support marriage equality.” One homemade signs says “my sister and I want our moms to marry.” Several guards or police officers stand on the steps of the Supreme Court. Those in the crowd are prevented from being on the steps directly. (Photo: Tennille Tracy/WSJ)

The Supreme Court takes the bench at 10 a.m., but it has other matters to address before today’s arguments begin. The court is expected to announce one to four opinions and then admit a few lawyers to the Supreme Court bar.

The case’s official name is Hollingsworth v. Perry: Kristin Perry and allies want the court to strike down California’s Proposition 8 ban on gay marriage, while Dennis Hollingsworth and California allies who pushed the voter initiative want the court to uphold it.

Back outside the court: So many people want to view the Supreme Court proceedings that officials are handing out yellow cards that allow three-minute viewings of the oral arguments. People with the cards, many of whom have been waiting in line since midnight, will walk into the courtroom and then quickly move out. The system allows 70 to 80 people to view the proceedings every half hour, one Supreme Court police officer said. (Photo: AP)

The Supreme Court issues one opinion this morning, on a case unrelated to gay marriage. The opinion is the second in recent weeks to discuss the legal value of sniffs by police dogs looking for drugs. We’ll have a little more on the opinion later in the live blog.

The court’s lone opinion of the day is a 5-4 ruling that a police dog’s sniff at the porch of a Florida home suggesting the presence of drugs inside wasn’t sufficient to let police search the home without a warrant. It’s an unusual lineup: conservative Justice Antonin Scalia (pictured) writes for the majority, joined by fellow conservative Clarence Thomas and three of the court’s liberals, while liberal Justice Stephen Breyer joins the dissent.

Gay-marriage supporters have called for a broad ruling that would sweep away dozens of state bans and establish a nationwide right to same-sex marriage. Backers of California’s Proposition 8 ban on gay marriage said the court should leave the issue to states and warned against what they said could be a polarizing judicial decision.

As we reported, Charles J. Cooper, who is defending Prop 8, is less well known than his opponent, Ted Olson, a fellow conservative who shocked both sides when he challenged Proposition 8 in 2009 on behalf of two same-sex couples, saying it violated the Constitution.

Mr. Cooper’s Proposition 8 strategy has been notable in part because he has avoided putting homosexuality—or even the policy of same-sex marriage—on trial. Instead, he argues that the high court should allow citizens to deliberate the issues through democratic processes and should let states make their own rules about marriage.

Back outside the court: The loudest voices in the crowd of thousands outside of the Supreme Court are in favor of same-sex marriage; however, many opponents advocated for marriage as between a man and a woman.

In the dog-sniff case, Justice Scalia says that bringing a trained police dog onto a person’s property amounts to a search under the Fourth Amendment and requires a search warrant. The dissenters, led by Justice Samuel Alito, say police aren’t trespassing if they approach the front door of a house for a limited time accompanied by a dog. (The one in this case was named Franky.)

Justices Sonia Sotomayor, Anthony Kennedy and Ruth Bader Ginsburg lead skeptical questioning of petitioners’ arguments to restore Calif Prop 8. Justice Kennedy cites what he said are 40,000 California children who want their same-sex parents’ rights protected. “The voices of those children is important in this case, isn’t it,” Justice Kennedy asks attorney Charles Cooper, who represents a group defending the initiative that banned gay marriage in 2008.

Charles Cooper, the attorney representing Prop 8 backers, got less than a dozen words into his defense of traditional marriage before the Chief Justice John Roberts (pictured) interrupted and asked him to address standing issues, and whether his clients even should be allowed to defend the 2008 California citizen initiative that banned gay marriage.

Chief Justice Roberts questioned whether Mr. Cooper’s clients were any different from any other citizens of California to be able to defend Prop 8, when the state’s elected officials refused to do so. Mr. Cooper argued that the California Supreme Court had argued that the citizens had a vital interest to have the law defended and had agreed his clients could do so, since the state was refusing to defend the initiative approved by voters.

Outside the Court: Reverend Steve Clunn, an ordained minister with the United Methodist Church, showed up in favor of same-sex marriage and wore a multi-colored stole that resembled the rainbow flags symbolic of gay rights.

Mr. Clunn said he opposed same-sex marriage for several years before meeting gay and lesbian pastors and re-examining his views on the issue in the late 1980s. He now believes the Bible preaches “love and inclusion.”

“The more I listened to others and looked at what I was believing about the Bible and what the church should be doing, the more I realized I was wrong.”

Charles Cooper, attorney for Prop 8 backers, appeared at times to struggle in trying to make his intended arguments because the justices kept interrupting him. Justice Sotomayor asked what “injury” was suffered by the people trying to defend Prop 8. Mr. Cooper replied that it wasn’t a matter of an injury to any persons, but rather “injury to the state.”

Chief Justice Roberts moved Mr. Cooper along after about 10 minutes of a discussion on standing. Mr. Cooper tried to frame his arguments around the ongoing national debate over same-sex marriage and urged the court not to intervene and not make a decision for all 50 states on an “agonizingly difficult issue.”

Justice Sotomayor asked Mr. Cooper whether the state could discriminate against gays by denying jobs or benefits. She asked if there is any “rational basis” for the state to treat homosexual couples differently in those cases. Mr. Cooper replied, “I do not have anything to offer you.”

Then why aren’t gay couples a class that should be protected in marriage law, she asked. Mr. Cooper said the state had an interest because of procreation, which traditional marriage is built around. He argued that genderless marriage could lead to “harm to the institution” of marriage over time.

Justice Scalia came to Mr. Cooper’s rescue after several minutes, saying Mr. Cooper should have mentioned states that ban adoption by gay couples, and diverging studies on whether there is any adverse impact of child-rearing by same-sex couples. “That’s a possible deleterious effect,” he asked.

Justice Ginsburg interrupted to say that the issue Justice Scalia raised wasn’t at issue in the case. Justice Scalia responded that it was relevant. “I take no position on whether it’s harmful or not,” Justice Scalia said.

Justice Kennedy noted that there is much not yet known about the impact of same-sex marriage — five years versus 2000 years of history, he noted. But he also noted that 40,000 children already being raised by same-sex couples have an interest in their parents rights.

Justices Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg dominated the questioning at the end of Mr. Cooper’s argument time. Each of the three justices questioned the argument that same-sex marriage interferes with a traditional goal of marriage: procreation.

Justice Stephen Breyer noted that there are lots of opposite-sex couples that can’t have children yet choose to get married. Justice Kagan jumped in to ask about opposite-sex couples that choose to get married after the age of 55. There aren’t a lot of children coming out of those relationships, she said, prompting laughter from the courtroom audience.

Justice Ruth Bader Ginsburg raised the Supreme Court’s 1987 ruling in Turner v. Safley, where the court ruled that prison inmates have a right to marry. She said prisoners enjoyed that marriage right even though there was no prospect that they could procreate because they were incarcerated.

On Monday, Virginia DemocratMark Warnersaid he supported marriage equality, saying ina Facebook postthat he does so “because it is the fair and right thing to do.” Alaska DemocratMark Begichalso announced his support for gay marriage, saying in a statement that “Government should keep out of individuals’ personal lives—if someone wants to marry someone they love, they should be able to,”Buzzfeed reported. Missouri DemocratClaire McCaskillsaid ina Tumblr post over the weekendthat “I have come to the conclusion that our government should not limit the right to marry based on who you love.”

Earlier this month, Ohio Republican Sen.Rob Portmanand former Secretary of StateHillary Clintonalso said they now support gay marriage. Sen. Portman is the first current Republican to publicly support gay marriage. Bill Clinton also recently said that the Defense of Marriage Act, which he signed, should be overturned. (DOMA is being argued tomorrow.)

Shortly after Justice Ginsburg’s questions, Mr. Cooper sat down and lawyer Ted Olson, arguing for those challenging Prop 8, began his case. The California initiative walls off marriage for gays and lesbians and labels their “cherished” relationships as second-class, he said.

Chief Justice Roberts then interrupted Mr. Olson and asked him to first address the preliminary question of whether Prop 8’s supporters have the legal right to defend the ballot initiative, given that state officials aren’t defending it.

Mr. Olson said the Prop 8 supporters didn’t have standing to defend the law, but Justices Anthony Kennedy and Samuel Alito (pictured) immediately jumped in to disagree. Both justices appeared to believe that there were not procedural hurdles that should prevent the high court from ruling on the merits of the case.

If California’s top officials choose not to defend a ballot initiative and supporters of the initiative don’t have a legal right to do so, then the whole initiative process would be thwarted, Justice Kennedy said. The whole point of the ballot-initiative process is to allow the public to circumvent state officials, Justice Alito said.

After spending about 10 minutes on preliminary issues, Mr. Olson turned back to the main points of his argument, that the California initiative denied same-sex couples a fundamental right to marry. Several conservative justices, led by Chief Justice Roberts, jumped in to question that argument.

The chief justice said he’s wasn’t sure it was right to view prohibitions on same-sex marriage as an exclusion against gays and lesbians. The institution of marriage developed in ways that just didn’t include them, he said. The institution has been around since time immemorial, he said.

Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?

Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.

Chief Justice Roberts asked if the case would be different if California voters had passed Prop 8 before the California Supreme Court had ruled that same-sex couples could marry. Mr. Olson again stated his primary argument that marriage is a fundamental right that same-sex couples should enjoy. But he also conceded that there were narrower ways for the court to rule in his favor.

Justice Kennedy a short time later raised the narrower ruling by the 9th U.S. Circuit Court of Appeals that invalidated Prop 8. The 9th Circuit had ruled that Prop 8 impermissibly took away a marriage right that same-sex couples had gained from the state Supreme Court. The appeals court also said California had no legitimate reason to strip same-sex couples of a marriage right, given that the state has given same-sex couples all the other rights enjoyed by opposite-sex couples, regardless of their marital status.

Chief Justice Roberts asked if the whole case was just about the “label” of marriage, given that same-sex couples have other rights in California. The chief also suggested he might agree that an important part of the institution of marriage was the ability to have children.

If marriage is a fundamental right, can any other limits on it survive? Justice Sotomayor asks. In other words, are there also constitutional rights to incest and polygamy? This is the slippery slope argument that some opponents of same-sex marriage, if not Mr. Cooper, have raised.

Justice Anthony Kennedy (pictured) seems to have been wrestling deeply with the case—and asks whether the Supreme Court should have taken it up at all. He says that the advent of same-sex marriage is taking society into “uncharted waters,” but it remains to be seen whether they will lead to “a wonderful destination” or off “a cliff.”

At 11:05 a.m., Verrilli took the lectern. The government argues that when a state like California grants gay couples all the rights and privileges of marriage, there can be no justification for denying them the label of marriage. California’s own laws, which permit gay couples to adopt children, “cut the legs out” of Mr. Cooper’s argument that the term marriage must be reserved for heterosexual couples because only sex acts between men and women can produce children.

But several justices are troubled by the implications of that position—that states with generous policies toward gay couples cannot deny them the term “marriage,” while those that deny them all recognition escape review.

Not necessarily, says Mr. Verrilli. Those states indeed may have trouble justifying their treatment of gay couples, he says, but that should await a future case.

Justice Alito suggests the gay marriage issue is moving too fast. Same-sex marriage was first recognized in 2000, in the Netherlands, and it’s far too soon to assess its impact, he says. Gay marriage “is newer than cellphones or the Internet,” he says.

Chief Justice Roberts, his voice rising with some emotion, seems annoyed that the government is demanding recognition of gay marriage “right away,” instead of allowing public debate on the question to continue in its apparently likely direction of broader acceptance.

Justice Ginsburg disagrees. Loving v. Virginia, the 1967 interracial marriage case that hangs over these arguments, didn’t come as a bolt from the blue, she says. In 1964, the court struck down a Florida law making it a crime for men and women of different races to live together, without, as it said then, “expressing any views about the State’s prohibition of interracial marriage.”

She seems to be suggesting that Proposition 8 could be struck down without changing marriage laws elsewhere.

Mr. Cooper says that bans on interracial marriage didn’t make any sense because skin color was irrelevant to the state’s purpose in permitting people to marry. But that’s different for gay couples, who do not advance the state’s interest in responsible procreation and childrearing.

Mr. Cooper ends with the implicit assumption that nearly all the participants seem to share—that gay marriage is coming, sooner or later. Just stay out of it, he tells the justices, let this roiling debate continue. Don’t even worry about the gay and lesbian couples who brought this lawsuit, he suggests, because the same-sex marriage issue “will be coming back to California.” He means, apparently, that the shifts in public opinion suggest that if Proposition 8 survives the Supreme Court, a voter referendum to repeal the measure may be in the offing.

Comments (5 of 371)

I have been following Prop 8 from the moment arguments were published in the State of California Voter guide. The issue of same sex-marriages is contentious. An important point, the Supreme Court rarely weights in on marriage rights, which under the U.S. Constitution presently do not exist. In the broadest sense, marriage is not a federally protected right. The court may not seek to offer selected protection for one group. The matter is not up to the court to decide, but should remain in the arena of national discourse. Because we live in a society where majority consensus now stands, individuals do have the opportunity of persuasion by argument. I personally do not agree with same sex-marriages, however, I do support an individual's right to discourse and persuasive argument. Let us not forget that one of the constructs of a society is living within the norms and values that define that society. One norm is tolerance. But 100% equality across all sectors of a society is Utopian thought. The reality of American society, every single individual will not receive total equality in every aspect of society.

1:00 am April 30, 2013

John Craft wrote:

I dont believe in homosexuality. It clearly states in the bible it is wrong. and yes, one can argue that so is murder and yet we accept them into our society at different occasions. God created Adam and Eve, a male and female. And what God creates is always to perfection. If we allow this kind of lifestyle into our society we are going against the morals and standards God has set for us. By doing this we will only show that disregarding what our creator has to say. So if you want to be homosexual, that's fine, no one can stop you. But i do not believe someone who carries out such a lifestyle everyday by choice should not deserve what normal ciitizens have. If you want to go williingly against what God has to say, and yet still want to be have it your way, then you must take sacrafices by not recieving the same benefits as others. Simple as that. Harsh but true and its reality. People who are for Gay Rights, are only doing it so they can feel like they have power and control to justify their decisions.

1:28 pm April 27, 2013

Sid wrote:

I'm against marriage for sodomists. Guess I'm old fashion in believing that God hates sexual immorality as indicated numerous times in the bible. But if you don't believe in God and judgement, then this means nothing to you.

12:24 pm April 26, 2013

Misty wrote:

Same sex marriages are not EQUAL to the marriage between a man and a woman. Do the math:
1 gender is not the same as 2 genders....not equal!

2:05 pm April 18, 2013

THE 5-STAR BUSINESS NETWORKS wrote:

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